Teresa Hommel



Board of Elections in the City of New York

December 29, 2009

Hearing on the Selection of Optical Scan Voting Systems



Thank you for the opportunity to present information to you, to assist you in selecting an optical scan system for New York City.


I urge you to select the Dominion ImageCast optical scanner voting system rather than the ES&S DS200.


I will briefly discuss the following concerns:


1. Vendor History of Openness and Responsibility

2. System Security

3. Voter Privacy

4. Florida Study: Design Flaws Caused Overvotes to be Cast

5. Handling of Write-in Votes

6. Future Legal Status of Vendor

7. Vendor Attention to NYC


In addition I will comment on our State Board of Elections’ failure to release information that is necessary for public evaluation of the two scanner systems that the Board certified.


1. Vendor History of Openness and Responsibility




Dominion is a small, relatively new company. They are eager to please. They are open about their product and have not concealed it from responsible independent, public scrutiny.


--My December 22 letter to the Commissioners[1] related how Dominion responded to my request to bring their Election Management System for inspection by me and another election integrity activist – they brought the system and demonstrated it fully, answering all questions.


--Dominion is the only vendor to invite any election integrity activist to read their source code, to the best of my knowledge.




Product Failure: ES&S has a history of repeated failures to provide working equipment and competent technicians. This history shows their inability and/or disdain for delivering a quality product.


1.  “ES&S - the Midas Touch in Reverse” (3 pages)


2.  “ES&S Election Problem Log - 2009 to 2006” (31 pages)


3.  “ES&S in the News - A Partial List of Documented Failures up to 2006” (51 pages)



Bullying: ES&S has used their own failures with regard to equipment and service as opportunities to bully their clients. One well-known example is described in the “Case Study of Angelina County, Texas,” where ES&S threatened to withdraw support when the county had to meet legal requirements, and by doing so ES&S was able to dictate additional conditions for the use of their equipment by the county.


4.  “Vendors are Undermining the Structure of U.S. Elections”  (54 pages)


       Case Study of Angelina County Texas,” pages 9-12


History of violations of state laws, civil fines and injunctions, ethical violations,

breaches of contract, and less than satisfactory performance

These categories are used by the New York State Comptroller to assess “contractor responsibility” before allowing the state to make contracts with a vendor. Activists supplied the comptroller’s office with much information and evidence of irresponsibility on the part of long-established voting system vendors. It is unclear why the comptroller ignored the information and evidence, and why he did not suggest to the State Board of Elections to commission development of a state-owned system. Oklahoma commissioned development of their own scanner system at low cost, and has been satisfied with it for over a decade.


The details of ES&S’s “irresponsibility” occupy pages 7 through 12 of the report below.


5.  “Voting System Companies Fail to Meet New York State’s Requirements for

     ‘Responsible Contractors’ ”  (20 pages)



Secrecy: ES&S has a long history of secrecy about their products. They have used a variety of means, ranging from legal threats to plain refusal to comply with the law, to prevent examination of their equipment after election irregularities or requests by public officials. One well-known example is ES&S’s refusal to allow the state of California to review ES&S software, noted on page 9 in attachment 5 on Contractor Responsibility.


2. System Security


System security means that the system should resist human interactions that would corrupt the votes and tallies.


In New York’s Erie County, however, in the November 3, 2009 pilot election, ES&S’s “Election Management System” (EMS) enabled and allowed the Board of Elections staff to program the ballots incorrectly so that votes were switched and/or inaccurately tallied. If an outside hacker had done this, everyone would have been horrified. Because it was an apparently innocent mistake, we need to look at the software and ask,


Why did the software enable and allow this kind of mistake, whether

innocent or malicious?


Why didn’t the software at least put up a warning message, such as

 “ERROR -- Candidate 1 votes will go to Candidate 2” and log the

making of the error so that the person who made it could be identified?


This is a security flaw in the design of ES&S’s software, and New York City should not choose a system that enables this kind of foreseeable human mistake to be made.


ES&S equipment has a history of vote switching. In the attached map, note that this has been an uncorrected problem for many years.


6.  “Vote-Switching Software Provided by Vendors”  (2 pages)



This security flaw is made more serious by the fact that no jurisdiction audits their electronic vote-counting sufficiently to find all errors. Only the most glaring errors are noticed, and there have been many of these, causing additional work for local boards of elections as well as loss of public confidence.


7.  Ballot-Scanner Voting System Failures in the News – A Partial List  (63 pages)



3. Voter Privacy


In the pilot use of scanners upstate, the most frequent complaint was the lack of privacy.


The large screen on the ES&S scanner creates privacy problems. Despite the privacy barriers on the sides of the scanner, voters who are waiting in line to scan their marked ballots, as well as some poll workers, will be able to see information about the ballot being scanned, such as whether the voter has undervoted a particular race, or has overvoted and either accepted the overvote or asked for his or her ballot to be returned. The positioning and adequate smaller size of the Dominion screen next to the scanner is more private.


4. Florida Study: Design Flaws Caused Overvotes to be Cast


A carefully researched report by Mary Garber, Research Director for the Florida Fair Elections Center, has compared the rate of overvotes for the 5 different scanners used in Florida in 2008. Findings are on page 16 (bold emphasis added):


“7. Extremely poor overvote performance by the [ES&S] DS200 accounted for a large portion of the state's  no-valid-vote  rate -- particularly for in-person voting when overvote protection on the machine should have prevented excessive overvoting. Yet, more than 8 of 10 overvotes in the state occurred on the DS200, even though it only accounted for 4 of 10 votes cast.”


“8. It is likely that vote loss driven by the location of the override button and content of the message displayed disproportionately affected specific classes of voters, including language minority voters.”


For election-day voting at poll sites, the increase in overvotes was 1681%.






  Increase, 2004 to 2008


















Early Voting






































Total In-Person




















Table 2: Overvote Rates, In-Person Voting, Florida’s 2004 & 2008 Presidential Race (Page 6)


The report criticizes the DS200’s large, brightly-colored "Don't Cast" and "Cast" buttons which draw the voter’s eye away from the small black and white explanation of the problem. The report also raises questions about the method to be used by voters with non-English languages to select their language before being able to read the display. (pp 14-15)


8.  “Examining Florida’s High Invalid Vote Rate in the 2008 General Election,

       Part I: How Voting System Design Flaws Led to Lost Votes”  (19 pages)



5. Handling of Write-in Votes


The ES&S scanner does not divert ballots with write-in votes into a separate bin in the ballot box. This is a problem because staff will have to interact with the paper ballots by hand to find the ones with write-in votes, which creates security and chain-of-custody concerns. Alternatively staff will have to view all the computer-generated ballot images to find images of ballots with write-in votes. The problem here is that ballot images are not voter-verified, and should not be used as a substitute for the voter-marked paper ballots.


6. Future Legal Status of Vendor


ES&S faces anti-trust challenges from the U.S. Department of Justice which may impact their resources for providing equipment and services to their clients, including New York City.


9.  “BlackBoxVoting's Bev Harris Walks Us Through the DOJ Anti-Trust Probe of ES&S”

       (7 pages)



In addition, 14 states have opened investigations into whether ES&S owns too much of the voting machine market nationally: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Maryland, Massachusetts, New Mexico, Pennsylvania, Tennessee, Texas and Washington. Also, New York’s Senator Schumer plans to hold the congressional hearings on the situation.[2]


7. Vendor Attention to NYC


I believe that New York City will get better quality attention and service from a small, eager vendor than from a vendor that has had repeated difficulties for years in serving its existing client base. With the purchase of Premier (formerly Diebold), ES&S will face a large increase in customer demands. New York City will be merely one more fish in a very large pond.


ES&S may have provided adequate attention and service since NYC purchased their AutoMARK Ballot Marking Devices, but up until now ES&S has had the motivation of further sales. If NYC purchases the DS200 from ES&S, the company’s attentiveness may diminish.


8. Inadequate Action by State Board of Elections


Our State Board of Elections has made several mistakes at the end of its ground-breaking, rigorous certification effort.


A. Our State Board has certified equipment that has not passed all its certification tests, based on the possibility of compensatory procedures at the county level. Such county procedures would be difficult to enforce in the best of times, but our state and counties are now financially strapped, and may have difficulty performing such rigorous procedures.


B. Our State Board has certified the ES&S scanner system despite the failure of ES&S ballot-configuration software to prevent the predictable error of accidental or intentional vote-switching and other forms of incorrect tallying. Vote-switching has been a major scandal across our nation in elections compromised by use of electronic equipment.


Lever voting machines make vote-switching difficult to implement and easy to detect, and our use of lever machines for decades has not prepared us to think about vote-switching by our voting machines as a constant possibility. We know that when poll workers record lever machine tallies on the Return of Canvass forms, errors can be made, but we expect such errors to be corrected easily in the re-canvass procedure. With scanners and paper ballots, vote-switching may be detectable only by hand-count audits. Compared to the re-canvass of lever machines, hand-counts audits are time-consuming, cumbersome, and expensive. Our state law requires only a flat 3% hand-count audit of scanners, which will leave many races subject to undetected vote-switching and incorrect tallies.


C. Our State Board has not released the full documentation related to certification and the remaining flaws in the systems that are now certified. This forces most of the public to evaluate the new equipment in a superficial manner, when a deeper evaluation would be more appropriate.


9. Conclusion


Thank you for the opportunity to offer you this information. I hope you will try to find time to look closely at the nine attachments I have provided. I hope you agree with me that equipment that allows vote-switching and tallying errors is not acceptable for New York City.


I urge you to select the Dominion ImageCast as New York City’s optical scanner.

[1] http://www.wheresthepaper.org/09/LetterToCmsrsDec22_09.htm

[2] http://www.wheresthepaper.org/09/WVGazette091226ESSfacesFederalHearings.htm